Should Supreme Court Find Insurance Mandate Unconstitutional?

Kevin Zeese: Mandate is both bad policy and unconstituional, this is an opportunity to push for "Medicare for All" - March 27, 2012

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Kevin Zeese is co-director of It's Our Economy, an organization that advocates for democratizing the economy. He's also an attorney who is one of the original organizers of the National Occupation of Washington, DC. He has been active in independent and third party political campaigns including for state legislative offices in Maryland, governor of California and U.S. president, where he served as press secretary and spokesperson for Ralph Nader in 2004. He ran for the U.S. Senate in 2006 and was the only person ever nominated by the Green Party, Libertarian Party and Populist Party. His twitter is @KBZeese.

And in Washington, the Supreme Court of the United States is going to decide whether or not President Obama's health care legislation is constitutional. Can government mandate people to buy private insurance?

Now joining us to talk about this is Kevin Zeese. Kevin is codirector of It's Our Economy, an organization that advocates for democratizing the economy. He's an attorney who's one of the original organizers of the National Occupation of Washington, D.C. Thanks for joining us, Kevin.

JAY: So, Kevin, most people on the sort of normally thought of left-right spectrum here, most people on left-of-center liberal side of things is defending this legislation. And the right, traditional right, is attacking it and hoping the Supreme Court finds the legislation unconstitutional. But you and some other single-payer activists in fact want the Supreme Court to find this legislation unconstitutional. So am I right? And why?

ZEESE: That's right. In fact, weâIt's Our Economy, Single Payer Action, and 50 doctorsâhave filed an amicus brief with the Supreme Court in this case, arguing that the mandate was unconstitutional, that the government cannot force people, the United States, to buy a corporate product. And we believe that the reason they're doing it is false. We will not achieve universal coverage. Even the best estimates from during the debate of the health care bill show that there'll be tens of millions without insurance by 2019. And a recent study last week by the Congressional Budget Office showed that up to 20 million Americans could lose their employer-based health insurance because of this law.

In fact, there's a very easy way to achieve universal coverage, and that's just by deleting two words from the Medicare law, "over 65", because Medicare is a system that provides universal coverage to everybody over the age of 65, as well as people with disabilities. And it does so in a much less expensive way than health care. The administrative costs for Medicare are about 2 percent. They've been that way for decades. And the cost of insurance overhead and their administrative fees is about 16 percent.

JAY: Okay. Let's just back up and get into the legal question a bit that the Supreme Court has to review. The issue here is that to mandate that people have to buy private insurance, various peopleâyour group, and also others, including many Republicans and libertariansâare saying is unconstitutional 'cause you can't force someone to buy something. But Medicare is constitutional, and I have to say libertarians agree with that, too, that I've talked to, because it's not you have to buy a private product; it's actually a form of taxation that funds the system, and taxation is constitutional. Do I have this argument right?

ZEESE: Exactly. In fact, what Medicare was was an amendment to Social Security back in 1965 when President Johnson signed the Medicare law. And that's all it was. So if Medicare's not constitutional, Social Security's unconstitutional and the country has real problems. But I think your analysis is exactly right.

I think what you're seeing at the Supreme Court, though, is not left-right. You're seeing partisanship. You're seeing liberal groups that are supporters of the Democratic Party and Obama on one side and conservative groups that are part of the Republican Party on the other side. What we're putting forward is an empirical, evidence-based approach. In looking at the law, there's never been a time before when people have been forced to buy a corporate product. And looking at the facts, single-payer works.

JAY: Okay. Now, within the single-payer community at the time this legislation was passed there was a division. There were people that were, you know, serious activists in support of single-payer. And, again, justâI suppose by now everybody knows what single-payer means, but it's, I've always thought, one of the crummiest terms anyone ever came up with.

ZEESE: It is a terrible term. Yeah.

JAY: So I think we could start calling it Medicare for all or something like that, essentially a single government health insurance plan like Medicare.

ZEESE: Right.

JAY: There were people that were fighting for that, or even people who were fighting for, you know, what they called a robust public option, who still did in the end support this legislation, 'cause they said, well, it's better than nothing, because at least you get people with, you know, prediagnosed conditions can't be excluded from insurance. It does at least allow younger people up to the age of 26 to be insured. There were some other reforms within that that they argued were better than nothing, and get this legislation, and then build on that and fight for the single-payer. They were saying to jettison this will hurt a lot of families. Why do that when you could, you know, support this and then fight for more?

ZEESE: Well, the law includes a severability clause, which in legal jargon means you can separate the insurance mandate to buy insurance away from all the things you listed, which are really basic regulation of an industry. That's all legal. You're allowed to require an industry to cover people with pre-existing illnesses, allow young people to stay on their parents' plan. That's all legal. We're not challenging that. What we're challenging is the mandate forcing people to buy a private, corporate, for-profit product.

JAY: But wait a sec. Once you challenge that, doesn't that kind of undercut the ability to regulate the other? Because the argument goes, if you don't have this big pool of people all in that same basket andâin other words, you know, you don't have a scale of economics of insurance that would allow you to require insurance companies to do these other things.

ZEESE: Well, the court will look at that question. Most of the courts that have found the mandate to be unconstitutional have left the remainder of the law intact. And so those provisions that you mention that people do like would stay intact if that's the way the Supreme Court rules. I think that's the way the Supreme Court should rule. Their job's to look at what's legal under the Constitution and what's not, and there's no question that those kinds of regulations of an industry are legal, but forcing people to buy a product is not constitutional.

I think once we get to that point, then the push needs to come for realâa single insurance provider, a public provider, like a single-payer system, as they have in most of the world, you know, other than the United States. I think every other developed country has a single-payer system.

JAY: But are the insurance companies, and even the Obama administration, going to argue that you can't regulate those things, pre-existing condition, age of being on your parent's insurance, and some of the other things, that you can't really enforce that if you don't have the mandate, 'cause it's the mandate that creates the bigger pool, so the two are tied?

ZEESE: But you can enforce it. It's not a question of being able to enforce it. The question is: can the insurance companies afford it? And I think that will then, once again, highlight the issue. Insurance companies are in this for profit. They're not in it for the well-being of Americans. They don't really provide any health service. They just get in the middle of doctors and patients and make it very hard for doctors to get their billings paid, make it hard for patients to get the treatment they want paid for. They just get in the way. And what this will show is the reality that the insurance industry is there for its profit. They can provide coverage to all Americans, I mean, all pre-existing conditions. They can provide coverage to youth. The question is: can they profit? And right now their profits are very high. And so the question is: do they want to keep their big executive salaries, their big advertising campaigns, their big buildings? Are those priorities? Or is it better to provide the kind of health care we need and put their money into providing health care and not into their big buildings and big salaries and big overhead?

JAY: So you're hoping that the consequence of the Supreme Court deciding that this isn't constitutional is that it immediately reopens the debate about what is the best system, and in your opinion that becomes Medicare for all.

ZEESE: There's no question about that. And, in fact, I think it was a big missed opportunity by President Obama not to put up three systems. The United States currently has three systems. We have the market-based system of insurance, you have the single-payer system of Medicare, and we have the socialist system of the Veterans Administration. And if youâso we could've had a great debate about health care, which approach works. We have all three in the United States, and there's empirical evidence about all three. Now, actually, if you get down to it, the socialist system is probably the most cost-effective, provides the best coverage. That's what the research shows.

JAY: And the reason you're calling it socialist: because it's not just government insurance; its government delivery as well, veteran hospitals and such.

ZEESE: Exactly. It's the fullâit's more like the British health service. The doctors, hospitals, the nurses work for the government. So it's a totally government-run, government-fundedâ. Single-payer is government-financed but privately delivered. So you keep the private, you know, doctors, private hospitals.

JAY: And you have examples of that in not just Medicare, but doesn't San Francisco, the city, have a system something like that?

ZEESE: They do, exactly, and it's based on a restaurant tax. And they are able to provide health care to people who don't have insurance and cover basic services that way. So, yes, they do have that. And, again, though, it's much easier to do on a national level.

We could have one of the greatest health care systems in the world. We wouldn't have to be ranked number 37th by the World Health Organization behind many much poorer countries. We could be number one. We pay enough to be number one; we just don't get there. Right now, the United States spends about 18 percent of its GDP on health care, while most of the world spends under 10 percent.

JAY: Now, you must be getting a heck of a lot of flak from, especially, people that are supporting the Democratic Party, the Obama administration, and others. I mean, how are you being received in this argument from some of your colleagues that might be with you on other issues?

ZEESE: Well, that's always the reality. You know, I don't play the partisan game on any issue. That's why I'm part of the occupation in Washington.

And we're, by the way, starting a national occupation on March 30 that will go through the whole month. I hope people will be there and participate in that.

But I don't play the partisan game. I think we need to remove ourselves from partisan politics and do what's best for the country, and I think we need to go with an evidence-based approach, not a libertarian versus socialist, not a kind of philosophical, but what does work, what's the pragmatic solution to the many problems the country faces. I think when we do that, the solutions become evident.

And health care, it's evident that the solution is single-payer. And by the way, that gives consumers the most choice, because it doesn't tell you you have to go to a certain doctor or a certain hospital or can't have a certain treatment. The competition moves from which insurance company you have to which doctor do you like, which hospital do you like, which is more convenient, which provides the best services. It really moves toward health care as the competition, as opposed to insurance as the competition.

JAY: Thanks very much for joining us, Kevin.

ZEESE: Thank you for having me on.

JAY: And thank you for joining us on The Real News Network.

End

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